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A jury convicted defendant of attempted murder and other violent crimes. He asked the court for a Schwartz hearing (which is what they call these things in Minnesota) to evaluate whether a posting by the prosecutor on her public Facebook page improperly influenced the jury. According to affidavits that defendant submitted to the court, the prosecutor made the culturally insensitive remark that she was keeping the streets safe from Somalis.

The trial court denied the motion for a Schwartz hearing. Defendant sought review. On appeal, the court affirmed the denial of the motion.

It held that there was no evidence that the Facebook posting led to any jury misconduct. The jurors had been instructed not to research the case. (And we all know that jurors take those instructions seriously, right?) Any harm to defendant’s interests, the court found, would merely be speculative.

We’ve all heard the stories about lawyers using social media to research jurors and to gather evidence about opponents. But here’s a new twist: even judges look to Facebook to find information about the parties appearing before them.

In Purvis v. Commissioner of Social Sec., 2011 WL 741234 (D.N.J., Feb. 23, 2011), the question before federal judge Susan Davis Wigenton was whether the plaintiff had been wrongfully denied Social Security benefits. Ultimately the judge determined that the question of whether plaintiff’s asthma made her disabled needed to go back to the Social Security office for further proceedings. But the judge had some pretty severe skepticism about the merits of the plaintiff’s claim, expressed in this footnote:

Although the Court remands the ALJ’s decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile picture on what is believed to be Plaintiff’s Facebook page where she appears to be smoking. Profile Pictures by Theresa Purvis, Facebook, [link omitted because it’s broken] (last visited Feb. 16, 2011). If accurately depicted, Plaintiff’s credibility is justifiably suspect.

I guess the moral of the story is to hide your smokes when someone pulls out a camera. Or maybe there’s an even bigger lesson. What do you think? Leave your comments.

A recent decision from a New York appellate court gives us occasion to think about the problem of jurors doing web research to find information relating to the case.

The Carmichael Case

A jury convicted one Carmichael of murder. One of the jurors did some internet research during the trial on the question of whether the gunshot wound on the victim was a close contact wound or was inflicted from a distance. When Carmichael discovered the juror’s research, he moved to set aside the jury’s verdict. He argued that the juror’s misconduct caused prejudice to a substantial right.

The trial court denied the motion and Carmichael sought review. On appeal, the court held that the trial court properly denied the motion to set aside the verdict.

It found that Carmichael suffered no prejudice to a substantial right because the juror’s testimony at a hearing on the matter showed that the information found during the internet research was not helpful, that he remained confused even after the research, and that he based his verdict only on the evidence presented at trial.

The Modern Person’s Connection to the Web

The sense of connection that the modern person feels within the web causes an intriguing disruption to the traditional method of the jury trial system. It calls us to evaluate whether it’s fair to characterize conduct like that of the Carmichael juror as “misconduct.” As this Time article notes (and as we all know from our own experiences), it is natural for jurors to desire background, contextual information about the matter being considered.

In most instances this tendency to want and share information is a positive attribute. Skepticism, rationality and transparency are noble qualities. But information crossing the abstract borders of the trial court can jeopardize the fairness that the process has historically ensured. It’s no small problem. Even Britain’s Lord Chief Justice recognizes that the ability to so easily get information external to the case “changes the whole orality tradition [i.e., oral testimony] with which we are familiar.”

At the most general level there are two options for handling the present tension. Courts could assimilate the modern tendency and simply leave the process unchecked — allowing information to flow in and out as if on the breeze. The other option would be to clamp down, as the courts in Michigan have done, enacting rules that prohibit jurors doing research and disseminating information during the proceedings.

Our tradition should tell us to go with the latter, that is, clamping down. Looking at it a certain way, there is nothing different in kind occasioned by modern communication methods that mandates information to be free flowing. Though in the past it would have been less feasible, it would not have been impossible for jurors to share information during the process or do external research during off hours. To foster the fairness of the proceedings, courts have historically fortified the abstract walls of the courtroom, permitting the jurors only to consider the evidence made a part of the record. Think about it — that’s the entire basis for having rules of evidence in the first place.

So even though it’s easier to get information these days, and even though jurors want to do that (and in most situations outside of jury duty should be encouraged to do so), there is no good reason not to enforce strict regulations prohibiting outside research. Whether a juror should be permitted to share information during the process is more subtle — there are more concerns there about openness in the process implicated. Absent national security or other similar reasons, we generally don’t want proceedings to be incommunicado.

The solution should not be an assimilation and accompanying dissolving of the borders of the walls around the process, but should come from education of the jury pool. The quasi-closed system of the proceedings, moderated by rules of evidence helps ensure fairness and accuracy. To the extent jurors are helped to understand such a notion of “information regularity,” the more likely they are to see that it makes good sense.

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).